United States v. McAllister , 2007 CAAF LEXIS 9 ( 2007 )

UNITED STATES, Appellee
v.
John C. McALLISTER, Specialist
U.S. Army, Appellant
No. 00-0252
Crim. App. No. 9601134
United States Court of Appeals for the Armed Forces
Argued October 17, 2006
Decided January 10, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: David P. Sheldon, Esq. (argued); Captain Julie
A. Caruso (on brief); Major Fansu Ku and Captain Charles A.
Kuhfahl.
For Appellee: Captain Larry W. Downend, (argued); Colonel John
W. Miller, Lieutenant Colonel Natalie A. Kolb, and Major William
J. Nelson (on brief).
Military Judges: Patrick K. Hargus (trial), Debra L. Boudreau
(trial), and Donna L. Wilkins (DuBay hearing).
This opinion is subject to revision before final publication.
United States v. McAllister, No. 00-0252/AR
Judge ERDMANN delivered the opinion of the court.
Specialist John C. McAllister was convicted at a general
court-martial of disobeying a superior commissioned officer and
unpremeditated murder, in violation of Articles 90 and 118,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 918
(2000). He was sentenced to a dishonorable discharge,
confinement for life, forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. The convening authority
approved the sentence and the United States Army Court of
Criminal Appeals affirmed the findings and sentence. United
States v. McAllister, No. ARMY 9601134 (A. Ct. Crim. App. Dec.
3, 1999).
On August 2, 2001, this court determined that the military
judge erred by denying McAllister’s request for expert
assistance and refusing to permit a re-test of certain evidence
for the presence of deoxyribonucleic acid (DNA). United States
v. McAllister (McAllister I), 55 M.J. 270, 276 (C.A.A.F. 2001).
We remanded the case, directing that the Judge Advocate General
of the Army provide funds for employment of an expert and that
the Court of Criminal Appeals “order a factfinding hearing if
the additional pleadings make it necessary.” Id. at 277. After
receiving a declaration prepared by an expert retained by the
defense which set forth laboratory results of a DNA re-test, the
Court of Criminal Appeals ordered a factfinding hearing pursuant
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United States v. McAllister, No. 00-0252/AR
to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
United States v. McAllister (McAllister II), No. ARMY 9601134
(A. Ct. Crim. App. Dec. 9, 2003) (memorandum opinion on remand).
After the factfinding hearing, the Court of Criminal Appeals
again affirmed the findings and sentence. United States v.
McAllister (McAllister III), No. ARMY 9601134 (A. Ct. Crim. App.
Oct. 28, 2005) (memorandum opinion on remand). We granted
review to determine whether the denial of expert assistance to
the defense constituted a violation of McAllister’s right to
present a defense.1
“Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to
establish a defense. This right is a fundamental element of due
process of law.” Washington v. Texas, 388 U.S. 14, 19 (1967).
McAllister contends the factfinding hearing revealed that he was
improperly denied material evidence when the military judge
denied his request for expert assistance and DNA re-testing. He
claims that this error “directly impacted [his] ability to
present a defense . . . [and] is clearly an error of
1
On May 2, 2006, we granted review of the following issue:
WHETHER APPELLANT’S RIGHT TO PRESENT HIS DEFENSE WAS
VIOLATED WHEN HE WAS PREVENTED FROM EMPLOYING AND
UTILIZING A NECESSARY DNA EXPERT AT HIS TRIAL AND
WHETHER THAT ERROR WAS HARMLESS.
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United States v. McAllister, No. 00-0252/AR
constitutional dimension.” In light of the evidence derived
from DNA re-testing and revealed at the factfinding hearing, we
conclude that the military judge’s error had the effect of
denying McAllister the due process right to present evidence
establishing a defense. Because we conclude that this error was
not harmless beyond a reasonable doubt, we reverse.
Background
The facts relating to our determination that the military
judge erred by denying expert assistance to McAllister’s defense
are set forth in our initial opinion and will not be restated in
this opinion. See McAllister I, 55 M.J. at 271-74. In that
opinion, we remanded the case to provide McAllister “an
opportunity to demonstrate to the Court of Criminal Appeals,
with the assistance of an expert in [polymerase chain reaction]
testing, how he would have changed the evidentiary posture of
this case if the military judge had granted his request for [a
DNA expert].” Id. at 276.
Following that decision, McAllister employed Technical
Associates, Inc. (TAI), to review the previous DNA testing of
material found under the victim’s fingernails and to re-test
that material. Mr. Marc Taylor, laboratory director for TAI,
provided a declaration setting forth his conclusions and results
of TAI’s new DNA testing. Based on the content of that
63 M.J. 281 (C.A.A.F. 2006).
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United States v. McAllister, No. 00-0252/AR
declaration, the Court of Criminal Appeals determined there were
“material questions of fact that might give rise to relief” and
directed a factfinding hearing. McAllister II, No. Army
9601134, slip op. at 14.
At the factfinding hearing, the military judge heard
testimony from Mr. Taylor concerning his review of the
Government’s original DNA tests and the TAI re-test. The
Government’s DNA expert from the initial trial, Ms. Meghan
Clement, also testified about the initial DNA tests and her
review of Mr. Taylor’s re-test. At the conclusion of the
factfinding hearing the military judge made extensive findings
of fact as well as conclusions of law. The military judge found
that “the government has established beyond a reasonable doubt
that the court members’ findings of guilty would not have been
substantially swayed by the ‘alleged errors’ enunciated in Mr.
Taylor’s declaration” and that “[i]f the ‘new’ evidence had been
presented to the members at the trial in relation to other
evidence presented at trial, the members’ findings would have
been the same.”
The Court of Criminal Appeals again affirmed the findings
and sentence, finding that “the verdict was not substantially
impacted by the military judge’s erroneous denial of expert
assistance for the defense at trial or by the fact that the
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United States v. McAllister, No. 00-0252/AR
panel members did not hear the testimony of the defense DNA
expert.” McAllister III, No. Army 9601134, slip op. at 16-17.
Standard
Initially we must determine what standard we should apply
to review the impact of the DNA re-test and the other evidence
disclosed at the factfinding hearing. McAllister argues that
the factfinding hearing demonstrated that “material and relevant
evidence was improperly excluded by the military judge and
[since] this exclusion directly impacted [his] ability to
present a defense, the denial of the relevant and necessary
defense expert [was] clearly an error of constitutional
dimension.” As a result, McAllister argues that we cannot
affirm his conviction unless the Government demonstrates beyond
a reasonable doubt that the error was harmless.
The Government argues that the military judge’s error in
denying McAllister expert assistance was “error . . . of an
evidentiary nature subject to a nonconstitutional harmless error
analysis.” The Government further asserts that because the
post-trial testing did not present evidence that excluded
McAllister as a suspect, the error was harmless.
Our initial opinion in this case did not identify the
standard under which any new evidence should be judged, since at
that juncture it was not possible to determine the significance
of any evidence that might have been presented at the DuBay
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United States v. McAllister, No. 00-0252/AR
hearing. If the military judge’s error was not of
constitutional dimension, the appropriate standard is whether
the court-martial’s findings of guilty were substantially
influenced by the error. We have applied a four-part test to
evaluate prejudice under this standard: “‘(1) the strength of
the Government’s case, (2) the strength of the defense case, (3)
the materiality of the evidence in question, and (4) the quality
of the evidence in question.’” United States v. Clark, 62 M.J.
195, 200-01 (C.A.A.F. 2005) (quoting United States v. Kerr, 51
M.J. 401, 405 (C.A.A.F. 1999)). On the other hand, “[i]f the
military judge commits constitutional error by depriving an
accused of his right to present a defense, the test for
prejudice on appellate review is whether the appellate court is
‘able to declare a belief that it was harmless beyond a
reasonable doubt.’” United States v. Buenaventura, 45 M.J. 72,
79 (C.A.A.F. 1996) (citing United States v. Bins, 43 M.J. 79, 86
(C.A.A.F. 1995) (quoting Chapman v. California, 386 U.S. 18, 24
(1967))).
Discussion
McAllister asserts that had he been provided the assistance
and testimony of a forensic examiner at his court-martial, the
defense would have been able to dramatically alter the
evidentiary landscape. He argues that with the new evidence he
could have undermined the weight of the Government’s expert
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United States v. McAllister, No. 00-0252/AR
testimony and its evidence and also could have presented the
evidence that there were other contributors of DNA on the
victim’s fingernails to raise a reasonable doubt. As the
military judge’s ruling adversely impacted his ability to
present a defense, McAllister argues that the error was of
constitutional dimension and was not harmless beyond a
reasonable doubt.
The Government argues that the factfinding hearing revealed
that any new evidence was “neither relevant nor necessary.” The
Government asserts McAllister was not prevented from arguing
that some unknown person committed the offense at trial and that
the TAI DNA analysis merely confirmed what was known before --
that all known suspects other than McAllister were excluded.
Finally, the Government asserts that its strong circumstantial
case renders any error harmless regardless of whether that error
is tested under a constitutional or nonconstitutional standard.
Mr. Taylor’s declaration and testimony addressed the
following: the impact of the discovery of DNA from three
unidentified individuals on the victim’s fingernails; the
inability of the defense to properly rebut the Government’s DNA
expert regarding the significance of McAllister’s DNA being
found on the victim’s fingernails and the implication that dried
blood associated with McAllister’s DNA had been found on her
fingernails; and the inability of the defense to challenge the
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United States v. McAllister, No. 00-0252/AR
procedures utilized by the Government’s expert in conducting the
initial test. As we find the impact of the discovery of DNA
from three unidentified individuals to be dispositive of this
case, we need not address other aspects of Mr. Taylor’s evidence
or testimony.
The military judge’s findings, as supported by evidence
presented at the factfinding hearing, reveal substantive
evidence that could have been beneficial to the defense at
trial. During the re-test by TAI, DNA material from the
victim’s fingernails was again compared to known DNA samples
from McAllister, the victim, other potential suspects, and
individuals who may have been involved in some manner with the
victim. In relative terms, McAllister’s DNA was present on the
victim’s fingernails in greater amounts than others.
Additionally, the re-test confirmed the DNA of the victim and
her two-year-old daughter on the fingernails.
Significantly, TAI’s re-examination of the fingernails
revealed the presence of DNA from three previously unreported
contributors: an unknown male contributor on a nail of the left
hand; an unknown female contributor on a nail of the right hand;
and an unknown contributor on a nail of the right hand. Ms.
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United States v. McAllister, No. 00-0252/AR
Clement, the Government expert from the original trial, agreed
that there was DNA from an unknown male and unknown female.2
While noting that some of the difference between the
original DNA analysis presented at trial and the post-trial
analysis was the result of laboratory policy on reporting or not
reporting results, the military judge found:
If a defense DNA expert had examined and tested this
evidence prior to trial, the members would have been
informed that there were profiles for at least two
other unknown individuals present on [the victim’s]
nails. The members would have also been told that
there exists some trace alleles on [the victim’s]
nails that belonged to a third unknown person.
Had the defense been properly afforded expert assistance
prior to and at the original trial, the discovery of DNA from
three previously unidentified individuals would have been
presented to the members. This new evidence could have been
used by the defense to attack the thoroughness of the original
test and the weight that the members should accord that
Government evidence.
The new evidence, however, had a more significant potential
role. The discovery of DNA from three unidentified individuals
-- evidence that was unavailable to the defense at trial -–
would have changed the evidentiary posture of the case. The
2
The disagreement between Mr. Taylor and Ms. Clement with
respect to the third unknown contributor involved the strength
of the indications that DNA was present in the sample. Ms.
Clement indicated that because of the absence of certain
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United States v. McAllister, No. 00-0252/AR
original trial proceeded with nothing to contradict the
exclusive character of the Government’s DNA evidence. The
apparent fact that all known suspects other than McAllister were
excluded stood as an unrebutted scientific fact. The trial
counsel’s closing argument capitalized on this evidence, arguing
that all the suspects other than McAllister were excluded as if
the DNA evidence sealed McAllister’s guilt. As we noted in our
initial disposition of this case, the nature of this evidence
and the manner in which it was used at the original trial made
the Government’s DNA evidence “the linchpin of the prosecution
case.” McAllister I, 55 M.J. at 276 (emphasis added).
Not only could this new DNA evidence potentially undermine
the conclusiveness and weight of the Government’s DNA evidence
and the Government’s original trial position, it takes on an
importance of its own in this otherwise circumstantial case.
There is now hard evidence from which to conclude that someone
other than McAllister or any other known suspect was in physical
contact with the victim at or near the time of her demise. In
turn, this new DNA evidence could be argued to support a
conclusion that someone else committed the murder and thereby
raise a reasonable doubt about McAllister’s guilt.
Having reviewed the evidence that would have been developed
absent the military judge’s error in denying McAllister expert
indicators in the DNA test results, she would not have reported
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United States v. McAllister, No. 00-0252/AR
assistance, and having determined that this evidence could raise
a reasonable doubt as to guilt, we conclude that McAllister was
deprived of “relevant and material, and . . . vital” testimony
and evidence. Washington, 388 U.S. at 16. The effect of the
military judge’s ruling denying McAllister expert assistance was
to deny him the right to present a defense -– a defense to “the
linchpin of the prosecution case.” McAllister I, 55 M.J. at
276. The right to present a defense “is a fundamental element
of due process of law.” Washington, 388 U.S. at 19; Webb v.
Texas, 409 U.S. 95, 98 (1972) (“[J]udge’s threatening remarks,
directed only at the single witness for the defense, effectively
drove that witness off the stand, and thus deprived the
petitioner of due process of law under the Fourteenth
Amendment.”). We conclude that McAllister was deprived of his
constitutional right to a fair hearing as required by the Due
Process Clause. Jenkins v. McKeithen, 395 U.S. 411, 429 (1969)
(citing Morgan v. United States, 304 U.S. 1, 18 (1938);
Baltimore & Ohio R.R. Co. v. United States, 298 U.S. 349, 368-69
(1936)).
We must next determine whether the Government has sustained
its burden of demonstrating that this constitutional error was
harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24;
United States v. Simmons, 59 M.J. 485, 489 (C.A.A.F. 2004). The
positively the presence of DNA from a third unknown individual.
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United States v. McAllister, No. 00-0252/AR
Government must demonstrate that there was “no reasonable
possibility” that the absence of this potentially exculpatory
DNA evidence “contributed to the contested findings of guilty.”
United States v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005)
(citing Gutierrez v. McGinnis, 389 F.3d. 300, 307-08 (2d Cir.
2004). It has not.
We review de novo the question of whether a constitutional
error was harmless beyond a reasonable doubt. United States v.
Long, 64 M.J. 57, 66 (C.A.A.F. 2006); Kreutzer, 61 M.J. at 299.
The Government relies upon the four factor test for harmless
error in arguing that this error was harmless under either the
constitutional or nonconstitutional standard: “the strength of
the Government’s case, the weakness of [McAllister’s] case, the
immateriality of Mr. Taylor’s proffered testimony, and the
ultimate fact that [McAllister] could not be excluded as a major
contributor of DNA even after additional DNA testing.”
In each respect, this new DNA evidence undermines the
Government’s argument that the error was harmless and we
conclude the error was clearly not harmless beyond a reasonable
doubt. The DNA evidence of three unknown contributors directly
attacks the strength of the Government’s case. That same
evidence enhances the defense and potentially casts doubt upon
McAllister’s guilt. Mr. Taylor is an essential witness to
explain the new DNA analysis and explain the significance of
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United States v. McAllister, No. 00-0252/AR
those findings. Finally, while McAllister is not excluded as a
contributor of DNA, he is no longer the sole contributor as the
Government portrayed him to be.
At trial, McAllister’s DNA was the hard evidence
solidifying a primarily circumstantial case. Its importance in
this context was significant and the members displayed great
interest in the DNA evidence by asking numerous questions.
McAllister I, 55 M.J. at 273. The fact that the members did not
have before them scientific evidence that three other persons
contributed DNA to the victim’s fingernails precluded the
defense from presenting an entire line of defense to the
members. This new DNA evidence would have allowed the defense
an opportunity to raise a reasonable doubt. Therefore, we
conclude that the error in denying the defense request for
expert assistance prevented the defense from presenting critical
evidence and was not harmless beyond a reasonable doubt.
Decision
The decision of the United States Army Court of Criminal
Appeals is reversed. The findings of guilty of Charge II and
its specification and the sentence are set aside. The remaining
findings are affirmed. The record is returned to the Judge
Advocate General of the Army. A rehearing is authorized on the
affected charge and the sentence.
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